An article for physicians by physicians
Originally published December 2010, revised February 2011
An overview of medico-legal problems resulting from physicians' decisions on whether or not to report patients with medical conditions that may make it dangerous to drive, or from physicians' decisions on whether or not to support the reinstatement of a licence to drive.
Many Canadians depend on being able to drive. Although many people consider driving to be a right, the law states that it is a privilege (Highway Traffic Act of Ontario, Part IV, section 31; similar provisions exist in other provinces). Losing this privilege, even when the loss is justified, can result in severe emotional stress and financial consequences. On the other hand, an unfit driver may endanger his or her life and the lives of others. For this reason, all provinces and territories have legislation for reporting patients who are unfit to drive.
In some jurisdictions, the legislation requires physicians to report any patient who, in their opinion, has a medical condition that may make it dangerous to drive. In other jurisdictions, reporting is at the physician's discretion—that is, physicians are permitted, but not required, to report.
Although a patient may wish to continue driving, the physician making a report must consider the safety of the patient and the community. The decision whether or not to restrict driving privileges is made by the provincial or territorial licensing authority.
Physicians may be uncertain about what conditions should be reported, or when a patient's cognitive or motor functional assessment justifies a report. It may be helpful to consult the CMA Driver's Guide: Determining Medical Fitness to Operate Motor Vehicles, guidelines and consensus statements from specialty societies, and specialists in the involved clinical area. To operate some particular vehicles, drivers must meet special physical and mental requirements which may demand certain assessments and testing.
Each licensing authority provides a form for the purpose of reporting.When a report is not necessary but the patient has been cautioned not to drive, even for a short duration, it would be prudent to document this in the medical record.
The CMPA reviewed its experience in assisting members with fitness to drive matters for the years 2005–2009. In the 67 closed medico-legal cases reviewed, approximately half were legal actions or threats of legal action and the other half were complaints to regulatory authorities (Colleges). In both categories, decisions in favour of the physician predominated. Less than five per cent were complaints to a hospital or privacy commissioner.
The review of the CMPA cases revealed three principal themes:
- Allegations in legal actions that a physician failed to report a patient as unfit to drive because of a medical condition.
- Complaints that a report had been made to a provincial or territorial licensing authority.
- Complaints related to the refusal to support an application for restoration of driving privileges.
Failure to report
Allegations of failure to warn and/or report generally followed motor vehicle accidents in which a person was injured or killed. In some cases the injured person or their family sued not only the driver but also the driver's physician. In some suits, they alleged the physician failed to advise the patient-driver not to drive, and/or failed to make a report to the licensing authority, when one or both of these actions was indicated. If they sued only the patient-driver, some patients (or their insurer) in turn sued the physician, alleging that if a report had been made as indicated, they would have been prevented from driving.
The majority of legal actions involving CMPA members relate to patients with the diagnoses of seizure disorder or epilepsy, other neurological disorders or vision problems.
Several lessons can be learned from the legal actions:
- Before making the report, talk with the patient about the nature and intent of the report to the authorities. Point out that a physician only reports the information. Any decision to restrict driving privileges is made by the licensing authority.
- As it takes time for the licensing authority to consider physicians' reports and decide on a course of action, patients who are considered medically unfit to drive should be warned not to do so until the authority has made and communicated a final decision.
- You should document in the medical record that you have warned the patient not to drive and are making a report to the licensing authority. It is also useful to note if the patient has been informed that the process may take time and his or her response to the information.
- In situations where more than one physician is treating a patient, it is possible for each to assume that one of the others has made a report, when in fact no report has been made. The legislation therefore requires each treating physician to independently comply with the relevant reporting obligation.
The legislation on reporting provides protection for the physician against a legal action when the report is made in accordance with the legislation and in good faith, but does not prevent the patient from making a College complaint.
Complaints that a report has been made
In the CMPA cases reviewed, the majority of patients who believed a report should not have been made to the licensing authority filed a complaint with a College. The patient often challenged the accuracy of the diagnosis or its relevance to driving, or claimed that the act of reporting was a breach of confidentiality.
The medical conditions most often associated with these complaints are seizure disorders, drug and alcohol dependency, and psychiatric conditions.
In the majority of cases the Colleges have been supportive of the physician's decision to report.
Complaints about a refusal to assist in reinstatement
In the reviewed cases, some patients who had their licence suspended sought the assistance of their physician to have it reinstated. If the physician does not support the application, a complaint to the College might follow. Usually the patient claims full recovery or denies the condition has any effect on driving ability, whereas the physician is not satisfied that the patient has adequately recovered from their medical condition or that the condition is sufficiently controlled to permit the safe operation of a motor vehicle.
Common medical conditions involved in these cases include alcohol or drug abuse, recent cardiac problems, diabetes, seizure disorders and vision problems.
In such cases, careful consideration should be given to evaluating whether there has been significant change in the clinical condition that led to the original report and the restriction on the driver's licence, and whether any improvements alleviate the previous concerns. It is wise to document this consideration in the record and explain to the patient any reasons for declining the support.
The physicians' role in reporting
Physicians have an important role in reporting concerns about a patient's fitness to drive to the provincial or territorial licensing authorities. Physicians must consider both the safety of the patient and the welfare of the community. Clinical guidelines are available to help in these sometimes difficult decisions. Communicating to the patient the necessity and rationale for the completion of a report may help reduce conflict. CMPA members are encouraged to call the Association for advice if they have any medico-legal concerns.
Risk management considerations
- Have you considered the Canadian Medical Association or other medical organizations' recommendations on medical conditions that may pose a danger when operating a motor vehicle? If you are uncertain about the law, call the CMPA for assistance.
- Have you consulted with colleagues or obtained functional assessments, if appropriate?
- Have you warned the patient not to drive, if appropriate?
- Have you familiarized yourself and complied with the relevant legislation in your jurisdiction?
- Where legislation makes reporting discretionary, have you considered whether the patient's condition or actions justifies a report?
- Have you informed the patient of your intention and/or obligation to report? Have you reminded him or her that any decision to restrict or revoke the licence rests with the provincial or territorial licensing authority? Have you cautioned the patient not to drive until the licensing authority has made a determination?
- Have you limited the information in the report to what is required by the legislation?
- Have you adequately documented your assessment, discussion, warning and advice to the patient regarding driving, and whether or not you have made a report?
- Before supporting an application for reinstatement, have you performed the appropriate clinical assessments and documented these?
- When in doubt seek advice from appropriate sources and carefully consider the risk posed to the public if the patient continues to drive.